M J Davis Industrial Pty Limited v Fairfield City Council & Anor [2000] NSWCA 287

M J Davis Industrial Pty Limited v Fairfield City Council & Anor [2000] NSWCA 287

There was no error in the Deposited Plan for the purposes of s 195H. The plan approved by the Council was the subdivision plan lodged by Jumal only as modified by the conditions of approval, including condition 2 requiring dedication of 5 acres of public reserve. The linen plan and Deposited Plan reflected that conditional approval, so the Council's certification did not create an error in the plan. The later zoning position under IDO 10 also did not make the plan erroneous, because the open space component remained in the linen plan notwithstanding the zoning change.

Jurisdiction
Australia
Judgment Date
20 October 2000
Procedural Posture
Property and Conveyancing Appeal Concerning an Application Under S 195 H of the Conveyancing Act 1919 to Amend a Deposited Plan / Appeal From a Judgment of Bell J in the Supreme Court Dismissing a Summons
Outcome
Appeal dismissed with costs.
Legal Topics
['error in Deposited Plan' "registrar General's Power to Amend Plan" 'conditional Subdivision Approval' 'public Reserve Dedication' 'section 327(1)(d) Certificate' 'whether Subdivision Plan Was Substantially in Accordance With Approved Plan']
['property Law' 'conveyancing' 'local Government and Planning Law'] ['error in Deposited Plan' "registrar General's Power to Amend Plan" 'conditional Subdivision Approval' 'public Reserve Dedication' 'section 327(1)(d) Certificate' 'whether Subdivision Plan Was Substantially in Accordance With Approved Plan']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Property and Conveyancing Appeal Concerning an Application Under S 195 H of the Conveyancing Act 1919 to Amend a Deposited Plan / Appeal From a Judgment of Bell J in the Supreme Court Dismissing a Summons

Legal Issues

  1. 1 ['Whether the disconformity between Deposited Plan 249417 and the subdivision plan in relation to the common boundary constituted an error in the Deposited Plan for the purposes of s 195H of the Conveyancing Act 1919.' 'Whether the words "Public Reserve" written across Lot 30 on the Deposited Plan constituted an error in the Deposited Plan for the purposes of s 195H of the Conveyancing Act 1919.' 'Whether the Council erred in issuing the s 327(1)(d) Local Government Act 1919 certificate because the linen plan was not substantially in accordance with the plan of subdivision previously approved.' 'Whether the zoning change to IDO 10 meant the linen plan failed to comply with condition 2 requiring dedication of public reserve land.']

Ratio Decidendi

There was no error in the Deposited Plan for the purposes of s 195H. The plan approved by the Council was the subdivision plan lodged by Jumal only as modified by the conditions of approval, including condition 2 requiring dedication of 5 acres of public reserve. The linen plan and Deposited Plan reflected that conditional approval, so the Council's certification did not create an error in the plan. The later zoning position under IDO 10 also did not make the plan erroneous, because the open space component remained in the linen plan notwithstanding the zoning change.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']